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Consultative processes

The Government would do well to devise a mechanism to avoid the outpouring of public anger of the kind being witnessed now. The public resents being taken for granted; even beneficial steps have to be taken after discussion. The first step by the Government could, therefore, be to shed its propensity to act in haste, without consulting stakeholders.

Devendra Saksena | New Delhi |

The current farmers’ protest brings back memories of the Jan Lokpal agitation of 2011 when Delhi was almost overrun by protestors. To recapitulate, a draft Lokpal and Lokayukta Bill was proposed by a Group of Ministers in 2011, which was found highly inadequate by civil society. Anna Hazare and some other leaders of India Against Corruption sat on an indefinite fast against the proposed Bill.

In a show of solidarity, lakhs of Anna supporters milled around Delhi for four days, holding the city to ransom. The Government of the day capitulated to the protestors, promising immediate passage of the Bill, in the form desired by the protestors. However, the Lokpal and Lokayukta Act could be passed only in 2013, that too, after two more rounds of protests. The Act was implemented only in 2019, after several more rounds of protests and fasts by Anna Hazare.

It would thus appear that governments listen to public opinion only when forced to do so. But protests derail normal life and entail a heavy toll on the economy. Surely, in a democracy like ours, a way could be found to convey the public’s concerns to legislatures, after which all concerned can have an informed dialogue leading to an acceptable conclusion. It would probably be better if before drafting any legislation, public comments are invited and the legislation is drafted keeping all concerns in mind.

Of course, there are many situations where the Government needs to act in a hurry or to observe secrecy; the extant procedure of moving bills or ordinances may be followed in such cases. Prior public consultation before presenting a Bill is not unheard of; prior to announcing any policy or moving a legislative proposal, the British government puts in the public domain consultation documents called Green Papers that allow people, both inside and outside Parliament, to give the concerned department feedback on its policy or legislative proposals.

The British Government also issues White Papers as statements of policy, that often set out proposals for legislative changes, which may be debated before a Bill is introduced. The practice of issuing Green and White Papers lessens acrimony and ensures that the Government comes to know of all reservations that the public has vis-à-vis any proposed policy or legislation. Theoretically, similar provisions exist in India. A Pre-Legislative Consultation Policy (PLCP) was announced by the Government on 5 February 2014.

Under PLCP, all Departments and Ministries are required to proactively publish the draft legislation or at least essential elements of the proposed legislation, a brief justification for such legislation, its broad financial implications, and an estimated assessment of the impact of such legislation on environment, fundamental rights, lives and livelihoods of the affected people. Such details are to be proactively shared with the public and be kept in the public domain for a minimum period of thirty days.

Thereafter, the summary of feedback/comments received from the public/ other stakeholders is also to be placed on the website of the Department/ Ministry concerned. At the time of examination of the draft legislation or rules, the Ministry of Law and Justice must ensure that the concerned Department/ Ministry had complied with the process of pre-legislative consultation. Finally, before presenting the new policy or Bill to the Parliament, the Cabinet is to be made aware of the feedback of the public and the response of the Department/ Ministry thereto.

Alternatively, after recording reasons, Departments/Ministries have been given the option of bypassing this procedure. It would appear that the Government has invariably pursued the latter option, because in practice, laws are drafted by bureaucrats who have little concern for public opinion. Arun PS and Sushmita Singh in their study “Democratising Law Making ~ The Tale of PLCP” state that 89 per cent of Bills introduced in parliament from June 2014 to May 2019 were passed in secrecy, after little or no consultation.

The ruling party ensured the passage of Bills by its majority in Parliament; most amendments moved by opposition MPs to improve upon the legislation were defeated, often influenced by political factors rather than policy- based ones. Also, far-reaching changes in policy are often rammed through. For example, the Draft Coastal Regulation Zone Notification 2019 was not put in the public domain and 90 per cent of the objections raised by the fishing community and environmental groups were ignored.

Similarly, the deadline for providing feedback on Environment Impact Assessment Notification 2020 was unilaterally pushed back from 10 August 2020 to 30 June 2020, by the Minister concerned. Disturbingly, debates in Parliament are becoming fewer; important Bills like the Finance Bill 2018 (Union Budget for 2018- 19) are often passed without debate or with little debate.

Not many Bills are being referred to Parliamentary Committees, from 68 Bills being referred in the 15th Lok Sabha the number came down to 24 in the 16th Lok Sabha ~ and touched zero in 2020. The last Bill referred to a Joint Parliamentary Committee was the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Second Amendment) Bill in 2015.

Then, there is the recently invented practice of presenting ordinary Bills as Money Bills; the Finance Act 2017 had numerous provisions that had nothing to do either with the imposition of taxes or appropriation of sums out of the Consolidated Fund of India. While striking down certain provisions of the Finance Act 2017, a five-judge Constitution Bench, led by the Chief Justice of India, ordered that the validity of the passage of the Finance Act 2017 as a Money Bill should be decided by a larger Bench. Lawmakers are supposed to abide by the golden maxim of parliamentary democracy: “The majority will have its way but the minority must have its say.”

But a major controversy surrounds the enactment of the contentious farmers’ Acts, with opposition parties alleging that they were not given enough opportunity to debate or vote on the Bills. The endless protests over the three farmers’ Acts could, probably, have been avoided had the Government consulted the public and listened to their concerns before enacting these laws. However, the Government appears to have disregarded public concerns.

There were sporadic protests when the three Ordinances, that preceded the farmers’ Acts were promulgated in June 2020. Enactment of the farmer’s Acts in September, 2020 led to widespread protests in Punjab from September to November 2020, which were mostly ignored by the Central Government. Only when tens of thousand farmers descended upon Delhi did the Government move to address their concerns. A head in the sand attitude scarce behoves a Government that enjoys an absolute majority in both Houses of Parliament.

The legislative practices followed by State Legislatures are even worse. As pointed out in my article “Legislative Overreach” (The Statesman, 29 November), State enactments often try to criminalise personal preferences in matters of diet, lifestyle and sex. Laws passed by State Legislatures are often unnecessarily harsh and sometimes fail the test of judicial scrutiny or to achieve their avowed objects.

The Government would do well to devise a mechanism to avoid the outpouring of public anger of the kind being witnessed now. The public resents being taken for granted; even beneficial steps have to be taken after discussion. The first step by the Government could, therefore, be to shed its propensity to act in haste, without consulting stakeholders. Then, the Pre-Legislative Consultation Policy should invariably be followed and the Manual for Parliamentary Procedures may be amended to ensure that reasons are invariably assigned for rejecting public feedback or the recommendations of a Parliamentary Committee.

Of course, Parliament is supreme and can pass whatever laws it deems fit. However, Parliamentarians would do well to remember their responsibility of keeping the interests of their constituents foremost, which has been beautifully summed up by the Supreme Court in the celebrated case of Peoples’ Union of Civil Liberties vs. Union of India: “The citizens of the country are enabled to take part in the Government through their chosen representatives. In a Parliamentary democracy like ours, the Government of the day is responsible to the people through their elected representatives. The elected representative acts or is supposed to act as a live link between the people and the Government. The peoples’ representatives fill the role of law-makers and custodians of Government. People look to them for ventilation and redressal of their grievances. They are the focal point of the will and authority of the people at large.”

(The writer is a retired Principal Chief Commissioner of Income-Tax)